About Me

Buford C. Terrell
Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics” , produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions.

Wednesday, September 18, 2013

Ogden and Cole

Ogden
and Cole

For
the second time in two years the Department of Justice has issued a memorandum
outlining how it will enforce the federal laws forbidding distribution and
possession of marijuana.The question is
whether these indicate a real change in policy, a response to tight budgetary
constraints, a temporizing move, or just a publicity stunt.The best analysis is that they show an actual
change in policy.

Roughly
two years ago, with about fifteen states (now up to twenty) having adopted
medical marijuana lawsand very
different federal enforcement tactics in the various states, the Department of
Justice tried to clarify and unify its response to those laws.In a memorandum by Assistant Attorney-General
Ogden, it stated that the government had no interest in prosecuting patients or
their care-givers acting in conformity with state laws, but would continue to
vigorously pursue those connected with criminal enterprises or operating for
profit.

The
Ogden memo had radically different results in different states.In New Mexico and Colorado, with tightly
controlled distribution systems, the U. S. Attorneys took virtually no actions,
allowing the state systems to function.But in Montana and especially California, where the state laws were not
comprehensive in regulating production and distribution and many local governments
were resistant to implementation, some of the U. S. Attorneys became aggressive
in collateral attacks on growers and distributors.

Several
things have occurred since the Ogden memo was issued.First, the aggressive actions of two of the
four California USAs aroused substantial public opposition and resentment while
they did little, if anything to disrupt the access of growing numbers of
Californians to medical marijuana (what they may have done to large-scale
marijuana businesses is another story).Then several more states, at an increasing rate, approved state laws
recognizing medical marijuana.The
number of states is now up to twenty, containing around thirty percent of the
national population.

While
the task of enforcement got larger and the methods used prove to be
ineffective, resources for enforcement shrank.The Congressional budget sequestration imposed drastic across the board
cuts on all federal agencies, including the Department of Justice and its
subsidiary departments including the DEA, Bureau of Prisons, U. S. Attorneys,
and public defenders.These budgetary
constraints were a large part of the reason that Attorney-General Holder
announced that the Justice Department would discontinue the practice of
imposing mandatory minimum sentences for non-violent drug cases.

In
2012, Colorado and Washington, both states with existing medical marijuana
laws, passed referenda legalizing the sale and possession of marijuana in those
states.Since those new laws were
inconsistent with the federal law still controlling in those states, many
anxiously awaited the federal reactions to these laws.

One
set of voices was conspicuously absent from the discussion of these
issues.From the 1970s into the 1990s,
Congress had consistently tightened the federal drug laws, making them even
more draconian.Yet, when the states
began challenging its authority, first with California’s medical marijuana
referendum in 1995, Congress did nothing.

The
Justice Department responded to these events in a memorandum from Assistant
Attorney-General Cole in August, 2013.The Cole memo repeated the Ogden statement that the federal government
had no interest in prosecuting individual users and low-level dealers.It then stated that it would refrain from
action against the Colorado and Washington law (and by implication, laws later
passed by other states) if their fulfilled eight stated criteria.[1]

These
criteria should also serve as a restraint on some U. S. Attorneys who have used
the vague generalities of the Ogden memo as a hunting license to go after the
higher levels of the medical marijuana distribution chain in some states.This comment is not a criticism of the Ogden
memo.It was attempting to establish
guidelines for acting in the unknown – and unknowable – future of a nascent
industry.Vague generalities were the
best that could be done at the time.

Within
hours of the release of the Cole memo, A-G Holder announced he would be working
with federal banking regulators to find some method to allow banks to extend
normal banking services to regulated marijuana businesses that have to operate
under money-laundering statutes, RICO and CCE statutes and FDIC insurance
requirements.He expressed two reasons
for this action.Requiring these
enterprises to operate on a cash only basis makes them targets for robbery,
exposing the public to increased violence; and use of routine banking services
creates an audit trail that can prevent diversion of receipts to criminal
organizations like the Mexican Cartels.

After
the Cole memo was released, Sen. Patrick Leahy called a hearing of the Senate
Judiciary Committee to look into it, saying that it was time to put drug
control on a more reasonable basis.Of
those called to testify, only one raised even tepid objections to the actions
taken by the Justice Department.

Taken
together, the Ogden and Cole memos and the circumstances surrounding them show
a major change in the government’s thinking on marijuana regulation.Is that change merely a passive recognition
of federal impotence?An attempt to
shift responsibility to the states?Or
the first step to a major reform of federal drug law?At this early stage, only a fool would try to
predict the exact path that will be followed, but one thing is certain.Federal drug law has taken a large, and irreversible
step toward drug law reform.